England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		28 February 2008

1. MR JUSTICE STANLEY BURNTON: This is an application for judicial review of a decision of an Assistant Commissioner of the Metropolitan Police, specifically Mr Stephen House, who on 1 March 2006 upheld a decision of a Panel which had found the claimant, Mr Wheeler, as having committed breaches of the Code of Conduct. There were two breaches of the Code of Conduct alleged against him; one was:

"Being a member of the Metropolitan Police Service [he] failed to satisfy the required standard in respect of performance of duties in that: in [his] capacity of the officer with line management responsibility for Detective Inspector Howard of the Highgate Child Protection Team, [he] failed to ensure that that officer carried out to an acceptable standard his duty with respect to the management and supervision of investigations into allegations of child abuse."

2. The second charge was:

"Being a member of the Metropolitan Police Service [he] failed to satisfy the required standard in respect of performance of duties in that: in [his] capacity as the officer with operational responsibility for the Highgate Child Protection Team, [he] failed to ensure that investigations were carried out by the team to an acceptable standard."

3. The Panel, chaired by Commander Dick, found both charges proved and imposed as a penalty the lowest available penalty, as I understand it, namely a caution on both. The hearing before the Panel had been one in which there was considerable oral evidence, with the presenting officer represented by counsel and Mr Wheeler represented by leading junior counsel. It was those findings which were the subject of the review by the Assistant Commissioner, which led to his upholding both findings and sanction.
4. The charges arose out of what it is common ground was the woeful underperformance of Child Protection Teams in the Metropolitan Police area, and in particular at Highgate Police Station. They were brought to public light as a result of the tragic death of Victoria Climbié, which was the subject of an inquiry which made widespread criticisms of social workers and of the response of the Metropolitan Police. It is now (if it was not before) common ground that there were systemic failures in relation to child protection throughout the Metropolitan Police, but in particular at Highgate.
5. One of the senior officers in the Child Protection Team at Highgate was Detective Inspector Howard, who was referred to in the first charge. The claimant was a Detective Chief Inspector who had responsibilities which included responsibilities in relation to the Highgate Child Protection Team, but other responsibilities too. His other responsibilities included informants, firearms and, from time to time, dealing with specific investigations.
6. The hearings before the Panel and indeed the hearing before the review, in my judgment, would have been better focused had both charges not been in the vague terms that they were. The vagueness of the charges is a ground relied on for judicial review, as indeed, at least formally, was duplicity because clearly charge 2 covered the entirety of the ground of charge 1. In my judgment, duplicity is not a basis for interfering with a disciplinary finding such as those in the present case, although of course it may be relevant to the fairness of the proceedings and to the ultimate penalty if charges are found proved. Vagueness is a ground for judicial review if it leads to unfairness in the proceedings, and the danger with a vague charge is that the parties, and in particular the respondent (now Mr Wheeler, the claimant), do not know with some precision what is alleged against them and therefore are not fully able to address those matters in the course of the hearing. Here what was alleged was, in my judgment, too vague and should have been clarified. In particular, there should have been some specificity as to what Mr Wheeler should have done and failed to do in order to satisfy the requirements of his duties as "the officer with line management responsibility for Detective Inspector Howard" or as "the officer with operational responsibility for the Highgate Child Protection Team".
7. I refer to the vagueness of the charges in the hope that in future charges will be more focused and more specific. It is sufficient if a charge is particularised subsequent to its being first formulated, but certainly it should be sufficiently particularised well before the hearing so that the respondent to disciplinary charges knows not just what it is alleged he failed to do, but in what respects he failed, so that he can then see whether or not, consistent with his other duties, he could or should have done that which it is alleged he should have done.
8. There was an issue before the Panel as to what the nature of Mr Wheeler's responsibility for Highgate was, and there was a suggestion that his responsibility was only "administrative". The Panel was unable to understand what was meant by an administrative responsibility. It is a lack of understanding with which I entirely sympathise. In any event, it is quite clear from the area reports written by Mr Wheeler during the period covered by the charges, which in the end was effectively 1999, that he did have operational responsibility for the Child Protection Team in Highgate, and I do not understand it to be challenged that he could have intervened actively in the working of the Child Protection Team but did not do so.
9. The issue before the Panel and the issue which had to be considered by the Assistant Commissioner was whether his lack of any active management of Highgate and of any active supervision of the Child Protection Team, and in particular Mr Howard, resulted from a breach of his duties as a police officer. That involved consideration not only of what he could have done, but also whether it was something which he should have been done and whether he had time to do. When I say "whether it is something which he could have done", I mean something that was either physically or legally possible for him to do assuming he had no other duties. But the fact that he had other and conflicting duties is central to the judicial review before me. It is I think common ground that before the Panel, and as summarised to the Assistant Commissioner, the evidence of Mr Wheeler's superiors, and indeed inferiors (his subordinates), and of his predecessor in his role, was that he was not expected to involve himself actively in supervising Child Protection Teams. The conclusion of the Panel was that that effectively was a fault on the part of his superiors, which implicitly he should have appreciated, and therefore he was at fault in failing to carry out matters which went beyond what he was expected to do.
10. It goes without saying that any disciplinary tribunal would or should only find a breach of duty on the part of any officer, on the basis of a failure to do work which he was not expected by his superiors to do, only when the matter is entirely clear. The Panel, however, did find the matter entirely clear. One of the criticisms of the Panel is that they substituted their view for that of the superiors of Mr Wheeler at the time. It is for that reason that when granting permission Sullivan J raised the following question:

"Was the Panel's conclusion (upheld by the defendant) that the claimant's conduct 'clearly fell way below the standard expected by the MPS at the time on both counts' reasonably based upon the evidence given by his superiors as to what they did expect of him, or the Panel's own view of what the MPS (with the benefit of hindsight) ought to have expected of him?"

11. If we leave out the reference to the benefit of hindsight, in circumstances where it is said that superiors of an officer were themselves at fault, it does seem to me that, using their professional knowledge and experience, a Panel, if the evidence justifies it, is entitled to come to the conclusion that an officer failed to do that which he obviously should have done. However, it is most important that a disciplinary tribunal, such as the Panel in this case or the Assistant Commissioner, should be clear that they are not using the benefit of hindsight in departing from the standard applied by other officers at the time in question.
12. In those circumstances, I find it difficult to accept that there was no evidence to support the findings of the Panel or that their decision was for that reason necessarily perverse. But matters do not stop there for this reason: the decision of the Assistant Commissioner is brief in the extreme. So far as is relevant, it is contained in his findings under headings "Finding re 2" and "Finding re 3". The "2" referred to was that the charges, if valid on their face, each disclosed at least also one alleged breach of the material regulation. The Assistant Commissioner said this:

"I do not find this ground of appeal to be proven.

In relation to the first 'charge' I note Commander Dick's oral analysis [Commander Dick was the Chairman of the Panel] that there were appalling deficiencies in a high proportion of the Highgate investigations. It (sic) accepted by everyone, including Mr Wheeler, that there were significant defects in supervision within the unit ... It's accepted by all that Mr Wheeler was in the area DCI role ... at the material time and that he had some responsibility. I believe the panel were justified in taking this view. This is a specific issue - and a definite one, with a clear chain of logic - the unit was not performing to standard; the DI was not supervising adequately; the DCI was in the line of command.

I believe the same logic applies to the second 'charge'. The DCI was in line of command and therefore must bear some measure of responsibility.

It may be that there is more than one example of the breaches but in my view the breaches themselves are specific, as are the charges relating to them."

13. The charges relating to the breaches, in my judgment, were not specific as I have already indicated, but leaving that aside, that passage would seem to indicate that Mr Wheeler was guilty as charged because he was in fact in the line of command, and without consideration of the question whether, having regard to his other duties, he was sensibly able to exercise supervision and whether his not doing so amounted to a clear breach of his duties. Under "Finding re 3", the Assistant Commissioner said this:

"Was it fair and reasonable and a correct interpretation of evidence for the panel to - when applying the highest level of civil standard proof - to find as they did.

I am drawn to the extracts above which I took from the oral finding by Commander Dick. It was the panel's belief, having heard all the evidence, that the officer was in line command and was therefore in part responsible. I accept the defence points that in several written reports Mr Wheeler brought the Child Protection Team issues to the notice of his senior officers. Their response is not for me to comment upon but I cannot disagree with the panel's view that Mr Wheeler could have made practical and tactical interventions to improve the situation, both in relation to DI Howard and the Child Protection Team at Highgate." (emphasis added)

14. I have two difficulties with that passage. The first is that, again, it seems to assume that in line responsibility is the same as breach of duty in circumstances where those for whom one is responsible have acted deficiently. The second is that in the last sentence the Assistant Commissioner refers to Mr Wheeler having the possibility to make practical and tactical interventions to improve the situation, but does not in terms explain whether he should have, or having regard to the other responsibilities he was exercising, could have, done so at the time.
15. That one of the central points to be addressed by the Assistant Commissioner was the consequence of Mr Wheeler's other duties is, in my judgment, quite clear. It appears from the skeleton argument that was before the Assistant Commissioner, and it is also apparent that the point was well-founded by reference to the area reports which were in evidence, authored by Mr Wheeler, to which the Assistant Commissioner himself referred. In all of those reports, Mr Wheeler complained that he had neither the administrative backup nor the time properly to fulfil his duties. In those circumstances, a crucial point to be addressed was whether he failed in breach of his duties properly to prioritise his time having regard to the information available to him and the arrangements which were in place concerning the supervision of the Child Protection Teams. They included the fact that he did not attend and was not expected to attend meetings at which the activities of the Child Protection Team were considered. They were atttended by one of his superiors. That fact is also apparent from the evidence given to the Panel by superiors, which was referred to extensively in the submission made to the Assistant Commissioner.
16. The role of the Assistant Commissioner is one of review, and in the normal case that review may be relatively brief. The Assistant Commissioner directed himself in accordance with section 4 of the relevant Home Office guidelines, paragraph 4.2 of which reads:

"The review will provide the opportunity for a Chief Constable to take action to rectify clear errors or inconsistencies in process or determination by the earlier hearing.

4.12 The task of the Chief Constable in conducting the review will be to determine whether the original hearing was conducted fairly and whether the outcome decided upon appears to have been justified and appropriate to the nature of the case. Reviews must be carried out fairly and in accordance with principles of natural justice. The Chief Constable will be responsible for determining the course of the review."

17. In this case the review was attended by counsel and junior counsel for Mr Wheeler, and by the Presenting Officer on behalf of the Metropolitan Police disciplinary authorities. I would not expect the Assistant Commissioner to give long or detailed reasons for his decision, particularly in a case in which it appears he did not think it necessary to direct that there should be a further hearing with both sides represented. Nor is it to be expected of the reviewer that he goes through all the evidence that was given below where a transcript is available. What he must do is address the substantial points made on behalf of the person seeking review. His reasons need not be elaborate or long, and certainly should not be analysed as if they were a judgment of a judge of the Administrative Court, but it should appear from them that he was conscious of the substantial issues raised by the disciplined person, and explain why or on what basis he has concluded that the review should uphold the decision of the Panel.
18. In my judgment, the reasons given by the Assistant Commissioner do not satisfy those requirements. They give the impression that Mr Wheeler was found guilty (or rather the charges were found proved) by reason of his position as in-line manager without reference to what was said as to what was expected of him by superiors or subordinates or the competing demands on his time. All of those matters were heavily relied upon and asserted in the skeleton argument to the Assistant Commissioner.
19. The inadequacy of these reasons was not an original ground for judicial review, but having considered the material before the Assistant Commissioner and his reasons, I came to the conclusion that it was arguable. An appropriate ground was formulated during the short adjournment and Mr Ozin very fairly accepted that it was not a matter on which further evidence could be adduced since this was a case where reasons are required to be given as part of the decision, reasons must stand or fall by themselves, and therefore it seems to me that there is no injustice in giving permission to the claimant to rely on them.
20. I have concluded that the reasons not only were insufficient, but are consistent with the Assistant Commissioner not having addressed the real issue raised on behalf of Mr Wheeler. Mr Wheeler, I bear in mind entirely, was an officer with considerable experience of child protection and had been appointed to his position for that reason. Nonetheless, one cannot read his reports without being conscious of the fact that he was inadequately supported, that he was not in a position to fulfil all the duties imposed on him or which he had assumed, and that therefore, if he was to be found guilty of these charges, it had to be on the basis that he clearly had wrongly prioritised his time, it not being suggested that at any stage anyone brought to his attention any inadequacy in the Child Protection Team in Highgate. No reasons have been given for such a conclusion. Mr Wheeler was expressly during this period seeking his own appointment as a full-time Child Protection Team Supervisor. He was in a position in which, on one view, he had to be desk bound all day. It seems to me that if this review were to be upheld, it must be on the basis that the difficulties imposed on him by his conflicting duties were properly analysed so that the reviewer could be clear that his failure to do more in relation to child protection was indeed a breach of his duties, notwithstanding that, as would appear from his contemporaneous documents, written before any complaint as to his conduct arose, his time was more than taken up simply with other matters.
21. For those reasons, it seems to me he is entitled to have this decision on review quashed.
22. MR CARTER-MANNING: My Lord, I am obliged. The question you asked Mr Ozin is probably the next question to consider. The effect of that, in my submission, is that matters should end here.
23. MR JUSTICE STANLEY BURNTON: I am not sure that is a matter for me, is it? I have quashed the decision.
24. MR CARTER-MANNING: I appreciate that. This is a matter that goes back to February 2000 in the sense of the events. It has been hanging over him professionally for five years. He received the absolutely most minimum penalty available to the Service.
25. MR JUSTICE STANLEY BURNTON: I sometimes wonder about the penalty whether there is a degree of compromise there, but there we are.
26. MR CARTER-MANNING: So does the Bar, but it is never a proper submission perhaps.
27. MR JUSTICE STANLEY BURNTON: No, no, but one does sometimes, when one sees that the penalty does not match the offence, one does wonder.
28. MR CARTER-MANNING: Exactly. It was actually less than those who pleaded guilty before the same Tribunal.
29. MR JUSTICE STANLEY BURNTON: But they had a more direct role.
30. MR CARTER-MANNING: That I understand, my Lord. So, my Lord, if it not be for me, then so be it. Can I correct one matter? Your Lordship has struggled manfully with OCUs and senior management teams, and at one stage in your Lordship's judgment you turned a CP team meeting and a senior management meeting into an OCU.
31. MR JUSTICE STANLEY BURNTON: I do apologise. When we get the transcript I will try to put it right, assuming I have remembered. If that is the only thing I have got wrong, that is not too bad.
32. MR CARTER-MANNING: I respectfully entirely agree. My Lord, the only other matter is the question of costs. The claimant would ask for his costs.
33. MR JUSTICE STANLEY BURNTON: You have succeeded on a ground which was not --
34. MR CARTER-MANNING: I have succeeded on two grounds, in our submission. The first ground I readily accept was not pleaded until today. You have also in effect quashed because of the failure of the Assistant Commissioner not to quash because of the charges and the vagueness. You have made it pretty --
35. MR JUSTICE STANLEY BURNTON: I am not sure I said that. I criticised the charges, but I did not make a finding that there had been any unfairness.
36. MR CARTER-MANNING: That of course I accept. I entirely appreciate we win on a ground that was amended today, and I appreciate that is a relevant consideration, but the issue as to whether the Assistant Commissioner properly considered matters has always been in the papers. As your Lordship said, Sullivan J's question, even that was aimed in that direction, and whether you found against the defendant or not, the criticism of the charges has always been there. I put it in the way I do very conscious that we have not, ironically because of what we were doing at lunchtime, passed to my learned friend the costs schedule that is available, but I would ask for costs. I submit they should follow the event.
37. MR JUSTICE STANLEY BURNTON: Mr Ozin, what do you say about costs?
38. MR OZIN: My Lord, in my submission, the way your Lordship has put it is the correct analysis. My learned friends have not succeeded on any ground which caused the defendant to resist this claim. In the circumstances, it would be rather rich for me to ask for my costs, but I would respectfully submit that costs should rest where they fall.
39. MR JUSTICE STANLEY BURNTON: Thank you.
40. MR OZIN: Could I also, whilst I am on my feet, clarify one matter which I think probably follows implicitly from your Lordship's early remarks, does your Lordship take the view that it is a matter for the discretion of the Metropolitan Police Service as to whether there should be a fresh re-hearing or not?
41. MR JUSTICE STANLEY BURNTON: I am not directing a re-hearing and I am not precluding a re-hearing.
42. MR OZIN: I am grateful.
43. MR CARTER-MANNING: My Lord, counsel never wax more lyrical than on the subject of costs.
44. MR JUSTICE STANLEY BURNTON: So far as a re-hearing is concerned, cogent matters have been put forward as to why there should not be, but it seems to me it is not a matter for me; it is a matter for the discretion of the Metropolitan Police. Yes, costs?
45. MR CARTER-MANNING: My Lord, I was saying counsel always wax lyrical, your Lordship has the point. We have succeeded, albeit we have been trying to succeed in tribunals for some time. We have finally succeeded at the third attempt. This perhaps is a matter where it would be wrong for the Federation to be responsible for the costs of this officer given all the circumstances of the entirety, and indeed one goes back as far as perhaps the decision to bring the proceedings against him in the first place.
46. MR JUSTICE STANLEY BURNTON: Thank you very much.
47. Mr Wheeler succeeded on a ground really that arose during the course of argument today. It seems to me that, although there are aspects of the matter which could be said to be unfair -- the fact that he was the most senior officer to be subject to disciplinary proceedings -- nonetheless the fair order for costs, in my judgment, is that there should be no order in respect of costs.
48. Thank you.

(Short Adjournment)

49. MR JUSTICE STANLEY BURNTON: Yes?
50. MR OZIN: My Lord, I think probably the apologies should come from us. There was a certain debate that became initiated after your Lordship had left court as to where we stood in terms of the status of the Board's decision, and I drew to my learned friend's attention --
51. MR JUSTICE STANLEY BURNTON: I had not quashed the Board's decision.
52. MR OZIN: I know my learned friend wished to address you --
53. MR JUSTICE STANLEY BURNTON: The judicial review was of the Assistant Commissioner.
54. MR CARTER-MANNING: My Lord, that is right. May I say I put the thanks where they are due; they are due to the Press Association who raised the matter with us as to the status. My Lord, what nobody seems to have drawn your Lordship's attention to are the powers in respect of quashing orders: either to remit to direct that the court reach a decision in accordance with the judgment of the court, in other words to remit and tell them to sort it out, or where the court considers there is no purpose to be served in remitting the matter to the decision-maker, and subject to any statutory provision, take the decision itself.
55. MR JUSTICE STANLEY BURNTON: Just pause there for a moment. If I do not remit, then the Panel decision stands, does it not?
56. MR CARTER-MANNING: Yes.
57. MR JUSTICE STANLEY BURNTON: So it must be remitted.
58. MR CARTER-MANNING: No, that does not follow, my Lord, with respect because --
59. MR JUSTICE STANLEY BURNTON: I can take the decision myself.
60. MR CARTER-MANNING: -- you can take the decision yourself. This is slightly unfair of us because I know you were not taking the decision yourself, but the powerful arguments against a re-hearing, the, sort of, ending of your Lordship's remarks, coupled with, if I may say so, my remarks about the age of this and the circumstances in relation to the charges, even though I appreciate you did not find that as a reason in relation to review, in my respectful submission given the penalty, given the years, given the charges, there must be finality at some stage, and if ever there is a case where your Lordship should take the decision himself and be done with it eight years on, a man who has really -- well, he has not been promoted; he is the only one who has not. He does not even have a desk, Ms McAtasney is telling me. It really is time for finality in front of your Lordship. Even the decision in front of the Assistant Commissioner was the best part of two years ago.
61. MR JUSTICE STANLEY BURNTON: I am rather surprised that I have power. Nobody has ever suggested that I have power to make a decision that the Tribunal could have made in circumstances such as this.
62. MR CARTER-MANNING: Mr Ozin seems to be of the view that you can. I am certainly of that view. It is Part 54.19, and it is sub-paragraph (3):

"Where the court considers there is no purpose to be served in remitting the matter [and we would submit realistically there is not], it may, subject to any statutory provision, take the decision itself."

63. My Lord, what your Lordship was doing was inviting the Commissioner to consider carefully, effectively. We would submit eight years on there really is no point in that. If this was a matter where there was a removal from the office of Constable --
64. MR JUSTICE STANLEY BURNTON: Different questions would arise if he had lost his -- if he was dismissed from the force.
65. MR CARTER-MANNING: Absolutely. I would not even be suggesting it; it would obviously be right. But in the circumstances of this case, particularly as we have had clarified both through your Lordship's judgment --
66. MR JUSTICE STANLEY BURNTON: Let me ask Mr Ozin what his position is. Have you had an opportunity to take instructions?
67. MR OZIN: I have not.
68. MR JUSTICE STANLEY BURNTON: Would you like that opportunity?
69. MR OZIN: I do not think that I would need to do so because I am clear what my instructions would be in these circumstances. It seems to me, with respect, that your Lordship's decision has the effect, given that your Lordship did not direct in accordance with the other two alternatives, that the matter is remitted back to the decision-maker: in other words, a reviewing officer, and it would then be for a review to recommence if applied for, and to be contested if it is to be contested -- the matter, as it were, falling within the discretion of the Metropolitan Police Service. What my learned friends seek, as I understand it, is that your Lordship should direct that the reviewing officer should make a decision as to the substantive merits of the case.
70. MR JUSTICE STANLEY BURNTON: I cannot do that.
71. MR CARTER-MANNING: No, I did not ask that.
72. MR JUSTICE STANLEY BURNTON: What I am being asked to do is bite the bullet myself, take the decision myself.
73. MR OZIN: Yes, if your Lordship is being invited to do that, I would respectfully submit that we have not had the debate which enables your Lordship to come to such a conclusion. In effect, your Lordship has held that the reviewing officer did not get to grips with the substance of the issues that were raised by way of grounds of appeal, and your Lordship has quite properly, if I may respectfully say so, declined to consider the underlying material, namely the transcripts before the Board.
74. MR JUSTICE STANLEY BURNTON: Mr Carter-Manning, I do take the view, while I consider the Metropolitan Police ought to consider carefully whether in the circumstances the Panel's decision should not simply be quashed having regard to the passage of time and their decision, it does not seem to me to be appropriate for me to make the decision myself for a number of reasons: one is that the case has not been argued on that basis, but perhaps more importantly the whole point of a review is that it is conducted by someone with professional experience of the matters in question, and I do not pretend to have that.
75. MR CARTER-MANNING: My Lord, I do not invite your Lordship to say that you do have that. Clearly, there is a difference. Might I try my luck to this extent as a final matter, that Mr Ozin has not got instructions. You have given clear and proper, in my submission, judicial indication. There is the formula that we were looking at that was used, albeit in a totally different set of circumstances in a police discipline case, where time was given to counsel to agree an order. It may be --
76. MR JUSTICE STANLEY BURNTON: That is why I asked Mr Ozin whether he wanted time to take instructions, because if he wants to take instructions and then mention the matter one day next week, either in writing or orally, then I am perfectly happy, but I have given an indication, I think --
77. MR CARTER-MANNING: There would be such a saving in costs if this matter can be sorted out without remission, but I would invite Mr Ozin to think very carefully before he resists at least the taking of instructions.
78. MR OZIN: My Lord, the matter is put so persuasively that it would be difficult to resist that invitation, though I dare say that the conclusion is foregone.
79. MR JUSTICE STANLEY BURNTON: I will adjourn the matter of the order. If you agree an order, let me have an agreement in writing. If you do not agree by next -- we will not talk about a date for the moment -- then unless you suggest otherwise, I will then decide the matter on the submissions I have had already without the need for a further hearing.
80. MR CARTER-MANNING: I am very grateful. I am very sorry to bring you back into court.
81. MR JUSTICE STANLEY BURNTON: Do not worry about that; it is an important point. How long do you want? Shall I say by next Friday; is that sensible?
82. MR OZIN: My Lord, yes.
83. MR JUSTICE STANLEY BURNTON: That gives me a week or so to produce an order.
84. MR CARTER-MANNING: I am grateful.
85. MR JUSTICE STANLEY BURNTON: Good. Thank you.